Secondary in Form, Final in Effect
Critical Observations on the Order of the Polish Supreme Court of 28 April 2026 (III CZ 44/26) | Robert Nogacki
The case turned, in the end, on copies. Not on the grounds of cassation, not on the amount in controversy, not on whether anything of substance could be urged against the judgment under review, but on a handful of pages filed a few days out of time. The cassation appeal had been lodged within the prescribed period and was complete in substance; it existed, as the Supreme Court itself acknowledged, as a procedural act already in being. What it wanted was a single technical complement: the service copies of the pleading. Those copies arrived a few days late, and in its order of 28 April 2026 the Court held that delay to be incurable through restoration of the time limit, reasoning that the cure of formal defects does not constitute an independent procedural act within the meaning of Article 168 of the Code of Civil Procedure (the “k.p.c.”).
The decision sits comfortably within the mainstream of the case law, and for that very reason it merits more attention rather than less. When a court of last resort denies relief to a litigant whose appeal has failed for a reason the court itself describes as secondary and technical, it is worth asking whether the rule that produces such an outcome is one we should be willing to apply with equal rigor where the litigant is truly without fault. The order in III CZ 44/26 is a fitting occasion to press that question, for its reasoning betrays a Court not entirely certain of its own rule.
The Facts and the Holding
The plaintiff sought payment and a declaratory judgment against the defendants. By order of 20 August 2025, the Warsaw Court of Appeal first rejected the plaintiff’s application for restoration of the time limit for curing the formal defects of the cassation appeal, and then rejected the appeal itself. The formal defect consisted in the failure to file the service copies of a pleading dated 30 April 2025. By operation of constructive service of the court’s direction of 16 May 2025, counsel for the plaintiff learned of the obligation to file those copies no later than 6 June 2025; the time limit expired on 13 June 2025. Counsel invoked illness during the period from 11 to 13 June 2025.
The Supreme Court dismissed the interlocutory appeal, resting its decision on two grounds. First, it held the application for restoration inadmissible: the cure of an appeal’s formal defects is not an independent procedural act; the appeal, lodged in time, was already in legal existence; and the obligation to attach the copies was merely secondary and technical, serving only to set the appeal in motion.[1] Second, the Court added that, even assuming the time limit were susceptible of restoration, counsel had failed to make out the absence of fault, for during the period from 6 to 10 June, when he was fit to work, he remained inactive, and an illness confined to the final three days of the period does not account for that inactivity.
Two Mutually Exclusive Grounds
Here the first difficulty emerges. The Supreme Court did not rest on the first ground alone. It appended a second, introduced by the telling formula “even assuming that the time limit for filing the copies were susceptible of restoration.” An alternative holding is, of course, an ordinary feature of judicial reasoning; here, however, it is not neutral, for the two grounds run in opposite directions and each undercuts the other.
If the first ground is sound, that is, if the cure of formal defects lies wholly outside the regime of Article 168 k.p.c., then the second ground cannot even be reached. One cannot inquire into fault in missing a time limit that is, by hypothesis, not susceptible of restoration; the question of the absence of fault arises only where the institution of restoration is in play at all. In turning to assess counsel’s diligence, the Court set in motion precisely the machinery whose application it had a moment earlier excluded, namely the objective standard of diligence and the no-fault condition of Article 168 § 1 k.p.c. The result is a curious picture: the Court at once maintains that the regime of restoration does not apply and proceeds to apply it.
One might dismiss this as a rhetorical flourish, a hedge against the possibility that the first ground should be doubted. It is more instructive to treat it as a symptom. A court confident in the categorical inadmissibility of the application would have had no need of a fallback argument on fault. The need for a prop suggests that the first leg is unsteady; and if it is unsteady, it is worth examining what it in fact rests upon.
The “Procedural Act” and the Price Paid by the Blameless
The view underpinning the first ground is the dominant one in Polish case law and scholarship, and its rationale is not trivial. A procedural act within the meaning of Article 168 k.p.c. is understood to be conduct undertaken to produce defined legal effects, conduct in which one can identify an element of content, a declaration of will or of knowledge by the party. The cure of formal defects is said to lack any such element: the party declares nothing, but merely brings the pleading into conformity with the statute’s requirements, an exercise for which the legislature has, moreover, prescribed no model.[2] For the same reasons, it has been held that the time limit for paying a court fee is not susceptible of restoration,[3] and more recent scholarship lists the filing of missing copies alongside the payment of fees as an instance of conduct that is not a procedural act.[4] The position is thus well settled, and the order of 22 January 2025 on which the Court relied (supra note 1) furnishes a recent confirmation of it.
Yet the force of this view is more apparent than real, for it answers the wrong question. The Court asks whether the cure of defects is a procedural act. But the question that decides the litigant’s fate is a different one: may a party who, without fault, has failed to satisfy a formal requirement in time thereby lose access to the cassation court? The first question is one of classification and can be resolved almost by dictionary; the second concerns the limits of the right to a court, and it alone carries constitutional weight. Relocating the dispute to the terrain of classification allows that weight to be sidestepped, but it does not dispel it.
Pursue the view to its conclusion. If the cure-deadline cannot be restored because the cure is not a procedural act, the blameless party who misses it, the advocate hospitalized for the entire week among them, is left with little she can use. The dominant view points, in theory, to restoring the deadline for lodging the appeal itself, the appeal being the true procedural act (V CZ 44/08, supra note 3); but in the case before us that route is largely illusory. The appeal was lodged in time, so there is no lodging deadline left to restore, only a formal completion that came late; and to treat the timely appeal as if it had never been lodged one would have to seek restoration within seven days of the impediment’s cessation (Article 169 § 1 k.p.c.), which presupposes an impediment lasting almost to the moment of the fresh application, an unreal posture once the illness that excused the late copies has long passed. A more generous line may admit restoration of the cure-deadline itself before rejection intervenes (I CZ 61/06; IV CZ 111/17),[5] but only at the price of acting before the very rejection that works the harm. The interlocutory appeal against rejection is no answer either: it tests the legality of the rejection, not the blamelessness of the default, and the excuse of a non-culpable default is the office of Article 168 k.p.c. alone. For the party without fault the practical result is close to the denial the formula proclaims, and the order in III CZ 44/26 confirms it by passing these slender possibilities over sub silentio.
This state of affairs, moreover, sits ill with the internal logic of Article 168 k.p.c. itself. The second paragraph makes the admissibility of restoration turn on whether the default entails adverse procedural consequences for the party. The legislature has thus tied protection not to the nature of the omitted act but to the gravity of its consequence. In the case at hand, the consequence was the gravest imaginable: rejection of the cassation appeal and the definitive closing of the road to cassation review. By the statute’s own measure, then, this is a situation for which restoration exists, not one from which it has been withdrawn. An interpretation that weighs the nature of the act where the statute commands that the consequence be weighed inverts the proportion the lawmaker adopted.
The genealogy of the view also repays attention. The “non-act” line grew up principally in the context of the court fee, a monetary obligation governed by a strictly defined external benchmark and attended by its own protective mechanisms, such as exemption from costs or a renewed summons to pay. The mechanical extension of that line from the fee to the filing of copies is not self-evident. The filing of copies, unlike payment, demands of the party some engagement with the content of the pleading; arguably it lies nearer to conduct directed at producing a procedural effect than to a mere act of payment. To equate the two situations is a doctrinal simplification that spares the court the labor of distinctions, but does so at the litigant’s expense.
There is a further tension in the reasoning, most clearly seen when one sets side by side the Court’s two propositions, each true in isolation. The Court concedes that the cassation appeal, as a means of appeal, existed in legal circulation, and hence that the procedural act of lodging it was performed in time and effectively. At the same time, it holds that what was missing was not a procedural act at all. From this follows a paradoxical conclusion: a validly and timely performed procedural act founders upon a belated complement that is itself no act. The act exists, and what undoes it is something that is not an act. The requirement the law fashioned to set the appeal in motion has, in the Court’s hands, become the one that lays it to rest. It would be hard to find a clearer illustration of the proposition that the classification on which the decision rests cannot bear the weight placed upon it.
The proper question, that of the limits of the right to a court, finds its anchor in Article 45(1) of the Polish Constitution and in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case law of the Constitutional Tribunal and of the Supreme Court has long reiterated the caveat that procedural formalism, valuable though it is in itself as a guarantee of predictability and equal treatment, must not harden into a trap that defeats a substantive right for trivial reasons. Against this background the European Court of Human Rights has developed a proportionality test: the more severe the consequence attached to a failure to meet a formal requirement, and in particular a consequence depriving the litigant of access to a higher court, the more compelling its justification must be.[6] A rule that places a non-culpable failure to file copies beyond the direct reach of restoration, and visits upon it the threat of losing the cassation altogether, is precisely the species of disproportionate formalism against which the Strasbourg standard warns. The essence of that standard, it bears noting, lies in the assessment of a rule’s concrete application rather than of the rule in abstracto; all the more troubling, then, is a categorical rule that withdraws protection in advance, without any weighing of the circumstances, from every litigant who misses a time limit of a given class. The extraordinary character of cassation is a reason to reserve it for causes of weight, not to forfeit them for a missing page; it argues for a high threshold, not a hidden trapdoor. Proportionality demands weighing; a categorical rule refuses to weigh.
Severity Compounded: Fault and the Standard of Diligence in Comparative Perspective
The Polish regime of restoration is, by comparison with other Continental systems, severe already at the level of fault itself. A settled line holds that even slight negligence offends the objective standard of diligence and suffices to warrant dismissal of the application.[7] Swiss law, by contrast, in Article 148 of its Code of Civil Procedure, permits restoration (Wiederherstellung) not only where no fault can be imputed to the party, but also where the fault was merely slight (leichtes Verschulden).[8] The difference is not cosmetic. Where the Swiss legislature forgives a minor inadvertence, the Polish standard punishes it.
German law, in regulating restoration to the status quo ante (Wiedereinsetzung in den vorigen Stand) under § 233 of the Zivilprozessordnung, trains its inquiry on the absence of fault rather than on a threshold classification of whether the omitted conduct is an “act” of the requisite category.[9] The center of gravity rests on the question whether the party or her counsel may be reproached, not on a preliminary sorting of acts into those that merit protection and those denied it by definition. The Polish solution adds to a stringent fault standard a second, classificatory barrier, and only the conjunction of the two yields its doubly restrictive effect: the party must first pass through the gate of classification before she can reach the assessment of fault at all, and there a standard awaits her that does not forgive slight negligence.
The course traveled by English law is likewise instructive. Rule 3.9 of the Civil Procedure Rules permits relief from sanctions for a procedural default having regard to all the circumstances of the case. After a brief episode of severity, inaugurated by Mitchell v News Group Newspapers Ltd, the English courts drew back from formalism in Denton v TH White Ltd, casting the assessment in three stages (the seriousness of the breach, the reasons for it, and all the circumstances) and concluding that to punish trivial defaults with the loss of access to justice is irreconcilable with the administration of justice itself.[10] The common law, having merely flirted with rigor, retreated from it. Polish practice, in entrenching the line of III CZ 44/26, moves in the opposite direction. It is worth at least that it should do so in the awareness that this is not the course the rest are traveling.
Across the Atlantic the contrast is sharper, and it bears directly on the difficulty just sketched. United States federal practice, governing enlargements of time under Rule 6(b) of the Federal Rules of Civil Procedure, permits a court to excuse a missed deadline on a showing of “excusable neglect.” The construction the Supreme Court gave that phrase in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership is candidly equitable: the court weighs the danger of prejudice to the opposing party, the length of the delay and its effect on the proceedings, the reason for the delay, and the movant’s good faith, and the standard reaches even a measure of carelessness, for neglect is taken to include negligence and not the impediment beyond control alone. What is decisive for the present problem is one of the enumerated factors, the reason for the delay, “including whether it was within the reasonable control of the movant.” That is precisely the question the Polish formula evades: not whether the impediment ought to have been foreseen, but whether the party had it in her power to act sooner. The American answer to the dilemma of the last day is thus to weigh rather than to classify. The rigor the Polish rule reserves for the cure of formal defects, American law reserves instead for the narrow class of deadlines it regards as jurisdictional, such as the statutory period for taking an appeal, which no equity may enlarge.[11] The instinct is the reverse of the Polish one: flexibility is the rule and rigidity the guarded exception, and rigidity attaches to the deadlines that go to a court’s power, not to the filing of a missing copy.
These comparative references are offered here at the level of each system’s governing rule rather than its casuistry; their purpose is to make plain that a categorical exclusion of protection is neither a necessary nor a common solution.
The Finding on Fault: A Sound Result on Flawed Reasoning
There remains the second ground, concerning counsel’s fault. Here the Court must be given its due: the result is defensible. Counsel knew of the obligation from 6 June, had more than a week at his disposal, and was overtaken by illness only on 11 June. The five days from 6 to 10 June, during which he was fit to work, he neither used nor explained. On that basis, and that basis alone, the finding of fault can be sustained. A party who has eight days and squanders five of them cannot successfully plead that illness claimed the last three.
The trouble lies not in the result but in the road the Court chose to reach it. Rather than confine itself to the plain observation that illness covered three of the eight days while five went unused, the Court reached for a far more sweeping argument: that a professional representative must reckon in advance with the possibility of “ordinary events of life, including brief indispositions of health,” and that this obligation binds him “all the more” where he suffers from “specific and recurring, short-term indispositions of health.”[12]
This argument, deployed without necessity, is harmful for two reasons. First, it undercuts a line that the Court itself invokes, in the same reasons, as governing law, namely the rule that delaying an act until the final day of the period is not in itself culpable, and that a fortuitous event on that last day excuses the default.[13] If one simultaneously holds that counsel must always reckon with illness and therefore must never leave an act to the close of the period, then nothing remains of the rule of the “last day.” A party is entitled to use the whole of the statutory period; the very point of the line in II CZ 146/12 is that recourse to the full period is not blameworthy. The standard “illness ought to have been foreseen” smuggles blameworthiness in through the back door.
Second, reliance on the order in III CZ 42/12 presupposes a factual predicate that cannot be discerned from the reasons as reported. The aggravating consideration in that order, the “all the more” on which the Court there relied, concerned a representative suffering from a specific and recurring ailment, that is, one whose recurrence may reasonably be anticipated. Nothing in the account of the case suggests that the illness of 11 to 13 June was recurrent rather than acute and isolated. The Court deploys the formula of “recurring indispositions” as though that finding were given in the case, when no such finding was made. There arises, in consequence, either an unwarranted factual finding, the attribution to counsel of a chronic condition without foundation, or an ill-fitting application of the doctrine of recurrence to an acute complaint. On either view, the reasoning exceeds what was necessary and what was established. It should be acknowledged that this assessment rests on the text of the reasons alone; the full record is not before the present author, and any evidence as to the recurrent character of the ailment would qualify the point.
Beneath the objection lies a difficulty the criticism ought not pretend to dissolve. The rule of the last day, taken at its word, does more than excuse the litigant whom misfortune overtakes at the close of the period; it confers a liberty to wait. A party entitled to the whole of the term may defer the act to its final hours, and if an impediment then supervenes, the omission is, by hypothesis, without fault. Yet the same liberty, seen from the other side, rewards a strategy of delay: postpone the act, let an impediment fall on the last day, and the question that ought to govern, what the litigant was doing on the days that went unused, is never put. The two propositions resist a clean reconciliation. One cannot in the same breath tell the party that the whole period is hers to spend as she will and reproach her for spending it in idleness; nor can one excuse the last-day impediment without inviting its manufacture. This is not a tension that a tidy formula dissolves, and the formula to which the Court resorted, that illness ought to have been foreseen, is purchased at the cost of the last-day rule itself. The way through the antinomy, if there is one, runs not through the foreseeability of the impediment but through the culpability of the inaction that preceded it. The liberty to wait is not a liberty to squander: the party who leaves the act to the last day assumes the risk of a last-day impediment only so far as her earlier inaction was without explanation. On that footing the present case decides itself, for the five days were neither used nor accounted for.
The point is that none of these more sweeping arguments was needed. It would have sufficed to point to the five squandered days. A court that, to justify a sound result, reaches for a superfluous argument and in the process strains its own settled line of authority pays too high a price for the convenience. The soundness of a decision does not cure the defects of its reasons; for those reasons, as a component of the case law, bear upon future cases more powerfully than the disposition itself.
Conclusions: Hard Facts, Bad Law
The order in III CZ 44/26 is a textbook instance of the mechanism by which hard facts breed bad law. The Court had before it a representative whose excuse was thin, and it could have closed the case on a narrow, strictly factual ground of fault. Instead it chose a categorical ground, a general rule of the inadmissibility of restoration, which in a future case will leave the truly blameless party to seek protection by a circuitous and uncertain route: the advocate hospitalized for an entire week, the litigant whose whole period was consumed by an event of force majeure. The price of severity toward the careless advocate today is the circuitous and uncertain road of the blameless litigant tomorrow. Such is the working of bad law born of hard facts: it resolves the case before it and impairs all those yet to come.
In the background lies the asymmetry with which we began. The Court called the requirement to file copies secondary and technical when it characterized its nature, yet treated its non-fulfilment as primary and dispositive when it drew the consequence. One and the same requirement cannot be at once too trivial to deserve the protection of Article 168 k.p.c. and weighty enough to extinguish the right to cassation. A requirement of form is meant to be a filter, not a torpedo: it is there to let causes of weight through, not to sink the ones that arrive a single copy short. That contradiction is the proper object of criticism. The rest, including the dispute over what counts as a procedural act, is merely its setting.
De lege ferenda, a modest but concrete proposal suggests itself. The legislature should make clear that the time limit for curing formal defects, the missing of which results in the rejection of a pleading or a means of appeal, is susceptible of restoration on general principles, or else equip Article 130 k.p.c. with a safety valve of its own against non-culpable defaults. The present uncertainty is the product of a legislative omission that the case law has papered over with a classification unable to withstand constitutional scrutiny. De lege lata, and until that uncertainty is dispelled, the courts hold a simpler instrument in hand: an interpretation of the concept of a procedural act oriented to the purpose of Article 168 k.p.c., which purpose is the protection of the party against the non-culpable loss of rights, irrespective of whether the omitted conduct can be fitted within a narrow, dictionary definition of an act. The concept is to serve protection, not the reverse.
For when procedural law begins to ask whether a sheet of paper is an act, instead of asking whether the party was at fault, it is a sign that formalism has ceased to be the servant of justice and has become its master.
[1]Sąd Najwyższy [Supreme Court], order of 22 January 2025, I CSK 516/24.
[2]See Supreme Court, order of 12 July 1957, 1 CZ 131/57; Supreme Court, order of 11 January 2008, V CZ 121/07.
[3]Supreme Court, order of 9 July 2008, V CZ 44/08.
[4]See the systematic treatise on the Code of Civil Procedure, art. 168 (J. Misztal-Konecka ed., 2026).
[5]For the competing line admitting restoration of the time limit for the cure itself before rejection has intervened, see orders I CZ 61/06 (10 November 2006) and IV CZ 111/17 (6 February 2018).
[6]Zubac v. Croatia [GC], no. 40160/12, ECtHR, 5 April 2018; Pérez de Rada Cavanilles v. Spain, no. 28090/95, ECtHR, 28 October 1998.
[7]Supreme Court, order of 25 June 2025, III CZ 115/25; see also D. Olczak-Dąbrowska, Przywrócenie terminu w postępowaniu cywilnym [Restoration of Time Limits in Civil Proceedings] (Warsaw, 2010).
[8]Schweizerische Zivilprozessordnung [ZPO] art. 148(1) (Switz.).
[9]Zivilprozessordnung [ZPO] § 233 (Ger.).
[10]Civil Procedure Rules r. 3.9 (Eng.); Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; Denton v TH White Ltd [2014] EWCA Civ 906.
[11]Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993); Fed. R. Civ. P. 6(b)(1)(B); on the rigidity reserved for jurisdictional deadlines, Bowles v. Russell, 551 U.S. 205 (2007).
[12]Supreme Court, order of 18 July 2012, III CZ 42/12.
[13]Supreme Court, order of 19 December 2012, II CZ 146/12; see also Supreme Court, order of 8 December 2004, I CZ 142/04.
Robert Nogacki – licensed legal counsel (radca prawny, WA-9026), Founder of Kancelaria Prawna Skarbiec.
There are lawyers who practice law. And there are those who deal with problems for which the law has no ready answer. For over twenty years, Kancelaria Skarbiec has worked at the intersection of tax law, corporate structures, and the deeply human reluctance to give the state more than the state is owed. We advise entrepreneurs from over a dozen countries – from those on the Forbes list to those whose bank account was just seized by the tax authority and who do not know what to do tomorrow morning.
One of the most frequently cited experts on tax law in Polish media – he writes for Rzeczpospolita, Dziennik Gazeta Prawna, and Parkiet not because it looks good on a résumé, but because certain things cannot be explained in a court filing and someone needs to say them out loud. Author of AI Decoding Satoshi Nakamoto: Artificial Intelligence on the Trail of Bitcoin’s Creator. Co-author of the award-winning book Bezpieczeństwo współczesnej firmy (Security of a Modern Company).
Kancelaria Skarbiec holds top positions in the tax law firm rankings of Dziennik Gazeta Prawna. Four-time winner of the European Medal, recipient of the title International Tax Planning Law Firm of the Year in Poland.
He specializes in tax disputes with fiscal authorities, international tax planning, crypto-asset regulation, and asset protection. Since 2006, he has led the WGI case – one of the longest-running criminal proceedings in the history of the Polish financial market – because there are things you do not leave half-done, even if they take two decades. He believes the law is too serious to be treated only seriously – and that the best legal advice is the kind that ensures the client never has to stand before a court.
